After some dereliction of our FCA cert. monitoring duties, FCA Cert. Monitor is back. There currently are 10 FCA cases on the Supreme Court’s docket, raising materiality after Escobar, the first-to-file and public disclosure bars, and the Rule 9(b) pleading standard, among other issues.

First, the old business: Of the eight FCA cert. petitions we identified in our last Cert. Monitor post in September, seven were denied, and the eighth, a petition in U.S. ex rel. Badr v. Triple Canopy, was dismissed after the parties settled. A ninth petition, in Bi-State Development Agency of the Missouri-Illinois Metropolitan District v. U.S. ex rel. Fields, No. 17-657, raising the question of whether interstate compact entities are immune from FCA liability under the Eleventh Amendment, was filed and denied since our last post.

Fast-forwarding to the present, the FCA docket has heated up. In the order the Court will likely consider them, the cases are:

  • U.S. ex rel. Carter v. Kellogg Brown & Root Services, No. 17-1060: The petition raises the following questions: (1) Whether an action filed in violation of the first-to-file bar can be “automatically revived by the dismissal of the earlier-filed actions,” an issue we have written about previously; (2) whether it was appropriate to deny the relator leave to amend his complaint; and (3) whether the first-to-file bar is jurisdictional. On March 5, the Court invited the Solicitor General to file a brief stating the views of the United States.
  • Bellevue v. Universal Health Services of Hartgrove, No. 17-842: The question presented is whether, to successfully invoke the original source exception to the public disclosure bar, a relator “must materially add to the publicly disclosed allegations to such an extent to cause the allegations on which the claims are based to no longer be substantially similar to the publicly disclosed allegations.” The petition has been distributed for consideration at the March 16 conference.
  • U.S. ex rel. Little v. Triumph Gear Systems, No. 17-1027: The petitioners seem to ask whether the Tenth Circuit inappropriately made the factual determination under a de novo standard of review that the petitioners were intervenors in a qui tam action, and thus were barred under the first-to-file bar, given the district court never reached that factual issue. Petitioners maintain that they were the sealed “John Doe” plaintiffs named in the original complaint. The petition has been distributed for the March 16 conference.
  • Gilead Sciences, Inc. v. U.S. ex rel. Campie, No. 17-936: The petition concerns whether a violation is material where the “Government continued to approve and pay for products after learning of alleged regulatory infractions.” We have written about this case in three prior posts. The petition was filed December 26, and the response was filed on March 5. It will likely be considered at the Court’s April 13 conference.
  • Medical Device Business Services v. U.S. ex rel. Nargol, No. 17-1108: The petition asks the court to consider the appropriate pleading standard under Rule 9(b), an issue that has come up many times before, including in cert. petitions. The petition was filed February 5, and the defendant has waived its right to file a response.
  • U.S. ex rel. Harman v. Trinity Industries, Inc., No. 17-1149: This petition seeks review of the Fifth Circuit’s decision vacating the $663 million judgment in the much-discussed case involving guard rails. It raises three issues: (1) Whether “continued payment by the Government is a factor that may be considered by the jury . . . or whether it is a determinative factor that would cause the claim to be immaterial as a matter of law”; (2) whether the actual knowledge and payment decision of the state is relevant under Escobar’s materiality analysis when the state, not the federal government, received the false statement and was the decision-maker; and (3) whether Escobar’s materiality analysis applies to express certification cases. The petition was filed February 12 and the response is currently due March 19.
  • Palin v. United States, No. 17-1221: This petition arises out of a criminal conviction for healthcare fraud affirmed by the Fourth Circuit, and raises two issues: (1) Whether materiality was established under Escobar, even though petitioner says the government’s agents knew about the alleged misconduct and continued to pay; and (2) whether the indictment should have been dismissed for failure to plead materiality with specificity. The Fourth Circuit’s decision is interesting because it suggests that Escobar might not apply to criminal cases, which the Fourth Circuit later confirmed in Raza, discussed below. The petition was filed February 22, and the government’s response currently is due April 2.
  • Raza v. United States, No. 17A732: Petitioner’s application for a stay of the mandate suggests that petitioner will raise the issue of whether Escobar’s materiality standard applies to criminal cases, an issue which is in the background of Palin. As noted above, we have written about Raza previously. Petitioner’s stay application was denied, and according to his application, the petition is due March 19.
  • U.S. ex rel. King v. Solvay Pharmaceuticals, No. 17A728: Petitioner’s application for an extension suggests the petition might address the standard to establish a causal connection between a false statement and a false claim, as well as the public disclosure bar. We have written about the lower court decision previously. The petition is due March 26.
  • U.S. ex rel. Conner v. FDIC, No. 17A908: Petitioner’s application for an extension of time in which to file his cert. petition indicates that the petition will seek review of a decision denying the relator a share of an FDIC recovery from a bank, even though the relator had made related allegations against the bank in an FCA action. The petition is due May 4.